Professional Documents
Culture Documents
03-3802
__________________________________________________________________
Appellee,
v.
Appellant.
_________________________________________________________________
2239480
SUMMARY OF THE CASE
presents important issues on (1) the nature and scope of the DMCA,
and (2) whether the special subpoena provision designed to aid in the
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CORPORATE DISCLOSURE STATEMENT
publicly held company owns ten percent (10%) or more of its stock.
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TABLE OF CONTENTS
TABLE OF CONTENTS...........................................................................iii
ARGUMENT............................................................................................ 13
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C. Because There Is No Valid Case or Controversy, The “Court
Order Exception” Under 47 U.S.C. § 551(c)(2)(B) Does Not
Operate To Allow The Disclosure Of Personal Information ......37\\
CONCLUSION ........................................................................................ 48
CERTIFICATE OF COMPLIANCE........................................................ 52
CERTIFICATE OF SERVICE................................................................. 53
ADDENDUM ........................................................................................... 1a
SEPARATE APPENDIX......................................................................... 1A
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TABLE OF AUTHORITIES
Cases
Bueford v. Resolution Trust Corp., 991 F.2d 481 (8th Cir. 1993)...........14
Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388 (9th Cir. 1998) ............36
Doe v. School Bd. Of Ouachita Parish, 274 F.3d 289 (5th Cir.
2001) .....................................................................................................27
Fisher v. Marubeni Cotton Corp., 526 F.2d 1338 (8th Cir. 1975) ...........25
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In re Marc Rich & Co., A.G., 707 F.2d 663 (2nd Cir. 1983)..........2, 14, 27
Norfolk Southern Ry. Co. v. Guthrie, 233 F.3d 532 (7th Cir. 2000) .......13
Sony Corp. v. Universal Studios, Inc., 464 U.S. 417 (1984) ...................21
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United States v. Comcast Cable Communications, Inc., No. 3:03-
0553 (M.D. Tenn. Aug. 4, 2003) ...........................................................34
United States v. Morton Salt Co., 338 U.S. 632 (1950).............2, 3, 24, 25
Statutes
9 U.S.C. § 7 ..............................................................................................26
17 U.S.C. § 512(b)(3)................................................................................44
17 U.S.C. § 512(c)(3)(A)(i)........................................................................20
17 U.S.C. § 512(c)(3)(A)(ii).......................................................................20
17 U.S.C. § 512(c)(3)(A)(iii)................................................................18, 20
17 U.S.C. § 512(g)(3)(D).......................................................................4, 45
17 U.S.C. § 512(h)(1)..........................................................................16, 28
17 U.S.C. § 512(h)(2)................................................................................17
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17 U.S.C. § 512(h)(4)................................................................................17
18 U.S.C. § 2703(c)...................................................................................32
47 U.S.C. § 551(b)(1)................................................................................37
47 U.S.C. § 551(f).....................................................................................28
Rules
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Constitutional Provisions
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JURISDICTIONAL STATEMENT
America, Inc. (“RIAA”). The jurisdiction of the district court was invoked
17 U.S.C. § 512(h).
The order entered by the district court was a final order within the
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
enforced subpoenas under 17 U.S.C. § 512(h) that did not and could not
In re Marc Rich & Co., A.G., 707 F.2d 663 (2nd Cir. 1983)
In re Marc Rich & Co., A.G., 707 F.2d 663 (2nd Cir. 1983)
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3. Whether the district court erred as a matter of law when it
47 U.S.C. § 551(c)
17 U.S.C. § 512(h)
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5. Whether the district court erred when it ordered Charter to
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STATEMENT OF THE CASE
This action was initiated by the RIAA’s request to the clerk of the
2003.
290A. On November 17, 2003, the district court held a hearing at which
The court denied Charter’s motion in all respects, except that it held
316A. The court directed Charter to provide the names, addresses, and
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provide the same information for an additional 50-70 subscribers by
December 1, 2003.
Charter filed its notice of appeal on November 20, 2003. Charter also
sought an emergency stay of the order in the district court and this
Court. The district court declined to rule on the motion for stay and this
Court denied Charter’s motion on November 21. Later, the district court
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STATEMENT OF FACTS
addresses, e-mail addresses, phone numbers, and other data, who are
people in this country and around the world share digital files using
that rely upon a single facility for storing files, P2P file sharing
claims are trading copyrighted works of music through P2P file sharing
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suspected of trading copyrighted music files. With an IP address, the
address with an individual’s name and physical address. The RIAA does
its servers. Rather, at issue here is whether, under § 512(h), the RIAA
may simply suspect that infringing materials are being exchanged yet
SA 290A.
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In a hearing held on November 17, 2003, the district court denied
subscribers who had not yet received notice. See id. The district court
Motion to Stay the District Court’s Order. SA 317A. The district court
declined to act on the motion to stay its Order before the compliance
Subpoena Pending Appeal. The Court denied a stay that same day. As a
result, Charter turned over the subpoenaed names and addresses of its
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SUMMARY OF THE ARGUMENT
A condition for issuing these subpoenas under the DMCA is that the
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“remove” any allegedly infringing materials, if indeed there are any
objections.
case, the subpoenas are invalid and void. Also, because Charter is a
under the Cable Act to protect its subscribers’ privacy that cannot be
or controversy.
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Moreover, these subpoenas implicate substantial First Amendment
suspected infringers exceeds the terms of the DMCA and would allow
third parties to not only learn the identity of individuals they may
the constitutional and statutory rights of ISPs and Internet users. The
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ARGUMENT
Standard of Review
See, e.g., National Union Fire Insurance Co. v. Terra Industries, 346
Development, 235 F.3d 1109, 1112 (8th Cir. 2000); United Sates v.
Peninsula Communications, Inc., 265 F.3d 1017, 1024 (9th Cir. 2001);
Norfolk Southern Ry. Co. v. Guthrie, 233 F.3d 532, 534 (7th Cir. 2000).
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I.
proceeding. See, e.g., In re Marc Rich & Co., A.G., 707 F.2d 663, 669
between the RIAA and Charter’s subscribers in the Article III sense, see
infra Part II, Charter may nevertheless raise the lack of subject matter
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recently decided by the District of Columbia Circuit Court of Appeals in
Services, Inc., 351 F.3d 1229 (D.C. Cir., Dec. 19, 2003). There, the Court
held that § 512(h) only permits a copyright owner to obtain and serve a
locate and remove the allegedly infringing material. See id. at 1233-34.
infringement.
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ISP cannot verify the allegations of infringement under subsection (a),
when subsection (a) is implicated because the ISP cannot locate any
when the underlying claim relates to P2P file exchanges. See id. at
1234-37.
provides:
17 U.S.C. §512(h)(1).
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§ 512(c)(3)(A). In particular, three distinct parts of subsection (h)
pertinent part, that “[t]he request may be made by filing with the clerk
authorizes the clerk to issue a subpoena if, inter alia, “the notification
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claimed to be infringing or to be the subject of infringing activity
and that is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit the service provider to
locate the material.
Id. at 1235.
has occurred. Indeed, all anybody knows is that the RIAA suspects an
that Charter, like any ISP, has no control over what is on a subscriber’s
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computer or sent by him or her over the Internet. For example, ISPs
their hard drives, cannot see what files may contain music, nor
Significantly, the D.C. Circuit rejected the RIAA’s argument that its
the D.C. Circuit pointed out that, where Congress wanted to authorize
1
Indeed, terminating a subscriber’s entire account is a much broader
sanction than merely removing specific material alleged to infringe a
copyright. Moreover, ISPs follow different standards under § 512(i) for
implementing a policy that provides for termination of subscriber
accounts of subscribers who are “repeat infringers.” See Ellison v.
Robertson, 189 F.Supp. 3d 1051, 1056-57 (C.D. Cal. 2002). The DMCA
does not provide for termination based on unverifiable allegations or
speculation of infringement. This is pointed out by the RIAA’s own
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The RIAA also argued that a notification could be “effective” under
(A)(iii). Id. The Court also rejected this contention, finding that
Id. at 1236.
copyrighted material. The D.C. Circuit instead agreed with Verizon that
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Id. at 1236-37.
Finally, the D.C. Circuit found that the RIAA’s general references to
contradict the text of the statute itself. Noting that “P2P software was
‘not even a glimmer in anyone’s eye when the DMCA was enacted,’ ” the
court emphasized that it was the province of Congress, not of the courts,
to decide whether to rewrite the DMCA “in order to make it fit a new
its terms authorize the subpoenas issued [by the RIAA],” id. at 1236,
apply with equal force to the RIAA’s subpoenas obtained from the clerk
and served on Charter in this case. Just like Verizon, Charter is an ISP
that provides Internet access to its customers but does not have access
to any of its subscribers’ own computer files and does not have the
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capability of searching its subscribers’ computers. Just like Verizon,
subscribers’ own computers. See id. at 1235. Here, none of the RIAA’s
§ 512(c)(3)(A). Unless and until Congress amends the DMCA, the RIAA
may not obtain subpoenas from the clerk and the court may not enforce
them when the allegations implicate P2P file sharing. Accordingly, the
clerk of the district court lacked the authority to issue the subpoenas.
II.
If the Court finds that § 512(h) does not authorize the issuance of a
allegedly infringing materials on its servers, then that is the end of the
matter. If, however, the Court disagrees, then it must face the second,
controversy here that allows the federal courts to exercise their judicial
power?
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The Verizon court did not address the issue in detail, except to
controversy at all between the RIAA – only the possibility of one.2 The
bootstrap that lacunae into a reason why the federal courts have power
the judicial power to serve the ends of a private party looking for a
There is little doubt that the federal courts are not “free floating
2
For example, the RIAA has filed less than 400 cases although it has
served at least 2000 subpoenas (see note 1, supra), demonstrating that
there would not be a valid case underlying more than 75% of the clerk-
issued subpoenas the RIAA has served on Charter and other ISPs.
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(1792); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 171-72 (1803);
United States v. Ferreira, 54 U.S. (13 How.) 40 (1851); Yale Todd’s Case,
U.S. Appx. 697, 699-706 (1864); Muskrat v. United States, 219 U.S. 346,
353-63 (1911); United States v. Morton Salt Co., 338 U.S. 632, 641-42
In Morton Salt, the Supreme Court made clear that “[t]he judicial
underlying action, and the process was not issued in aid of determining
that jurisdiction, then the process is void and an order of civil contempt
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The D.C. Circuit, relying upon both Catholic Conference and Morton
Currency, 86 F.3d 1208 (D.C. Cir. 1996), that a district court is “without
added); accord Barwood, Inc. v. District of Columbia, 202 F.3d 290, 294-
the court that must be obeyed, or the recipient is at peril of being held
F.2d 1338, 1340 (8th Cir. 1975) (“A subpoena is a lawfully issued
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of another entity such as an arbitral panel, see 9 U.S.C. § 7.
54 U.S. 40. The Court found that the role assigned by statute was not
judicial in nature:
Id. at 46-47.
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The D.C. Circuit’s suggestion that subsequent litigation can supply
Verizon, 351 F.3d at 1231, is not correct. As the Second Circuit has held,
and Houston Business Journal make clear that the subsequent dispute
over the legality of the subpoenas does not create the requisite federal
in the future – for the court to issue or enforce a subpoena. That is all
foundation for finding even a future Article III controversy. See, e.g.,
Doe v. School Bd. Of Ouachita Parish, 274 F.3d 289, 292 (5th Cir. 2001).
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III.
(“Cable Act”) states that a cable operator shall not disclose personally
3
Although there are certain exceptions to this broad prohibition against
disclosure, see § 551(c)(2), none are relevant to the issues raised in this
proceeding. One of those exceptions allows for disclosure by court order
if the subscriber is notified of such order by the person to whom the
order is directed. 47 U.S.C. § 551(c)(2)(B). Because there is no
underlying case or controversy, however, this exception does not apply.
See infra, Part III.C.
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“expeditiously disclose to the copyright owner or person authorized by
from a cable operator (that offers both cable video and Internet services)
comply with the prohibition on disclosure under the Cable Act it would
lose its safe harbor rights under the DMCA, and possibly face a court
4
Moreover, this section of the Cable Act imposes an affirmative duty on
the cable operator to “take such actions as are necessary to prevent
unauthorized access to such information by a person other than the
subscriber or cable operator.” 47 U.S.C. § 551(c).
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order or sanctions for failure to comply with the terms of a subpoena
Thus, two federal statutes, the Cable Act and the DMCA, impose two
Cable Act clearly states that a cable operator shall not disclose
enjoy the benefits of the safe harbor provisions under the DMCA, the
Courts have faced the question of how the strict prohibitions under
the Cable Act should operate when such provisions directly conflict with
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pertaining to cable services, the ECPA generally governs the
FBI or local law enforcement agencies) often serve cable providers with
addition, the Cable Act would have required advance notice to the cable
Internet subscriber, while the ECPA does not. Thus, cable providers
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statutory conflict was an issue of first impression); and In re United
to lack of ripeness).
cable operators. Thus, in 2001 Congress amended the Cable Act, via the
USA PATRIOT Act,5 to resolve this conflict between the Cable Act and
and other records not only upon receipt of a court order, but also in
5
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)
Act of 2001, Pub. L. No. 107-56 (October 26, 2001).
6
See 47 U.S.C. § 551(c)(2)(D); 18 U.S.C. § 2703(c).
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In other circumstances, where Congress has not reconciled
Fla. 1998), a federal district court faced the question of whether a cable
that the Cable Act was the controlling authority.7 Id. See also, United
7
The court later considered the information sought under the test
established under § 551 and concluded that the IRS was entitled to the
information because it had satisfied that test. Id.
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Tenn. Aug. 4, 2003) (denying motion to enforce IRS summons after
H.R. REP. NO. 99-647 at 65 (1986). This approach should guide the
resolution of the conflict between the DMCA and the (more restrictive)
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Charter provides both electronic communications service (Internet
United States v. Menache, 348 U.S. 528, 538 (1995)(holding that “it is
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Congress enacted superfluous provisions.”); Burrey v. Pacific Gas &
Elec. Co., 159 F.3d 388, 394 (9th Cir. 1998) (“[i]n interpreting a
private parties like the RIAA when the subscriber at issue is a cable
DMCA. Instead, Congress amended § 551 via the USA PATRIOT Act, to
works in conjunction with the DMCA as well, this court should not force
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C. Because There Is No Valid Case or Controversy, The “Court
Order Exception” Under 47 U.S.C. § 551(c)(2)(B) Does Not
Operate To Allow The Disclosure Of Personal Information
Sections 551(b) and (c) of the Cable Act broadly prohibit the use or
order” exception was enacted in the cable privacy provisions, there were
Patriot Act to keep the treatment for civil suits the same and not relax
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disclosures. There has been no indication, in the legislative history or
Thus, Congress clearly expected that the court order exception under
controversy, such that the court had full jurisdiction over the matter.
within the meaning of Article III. The RIAA has not filed suit against
any subscriber, nor has the RIAA attempted to invoke this court’s
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subject matter jurisdiction. Accord, In re Verizon Internet Services, Inc.,
257 F. Supp. 2d at 257, n. 12, rev’d on other grounds, 351 F.3d 1229
(D.C. Cir., Dec. 19, 2003)(“at the time of issuance, a § 512(h) subpoena
controversy’”).
The court order exception under the Cable Act, § 551(c)(2)(B), can
violation of § 551(c).
IV.
Yet another problem the court must confront if it disagrees with the
argues that the court must assume – based solely upon the assurances
members’ copyrights.
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There are, however, many legal uses of the material that might have
recently held that distribution of the KaZaA software did not constitute
infringement and Charter does not claim that there is. On the other
hand, at the time the subpoenas are issued, there has been no
there was any infringement, or even that the files shared were
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Because § 512(h) is a procedure designed to strip Internet speakers
not free to adopt whatever procedures it pleases for dealing with [illicit
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512(c)(3)(A)(v). It does not contemplate any adversarial proceedings
612 (1973); see Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254-55
(2002).8
8
With respect to subpoenas for the identity of anonymous Internet
users who have been alleged to have defamed others or committed other
content-based misconduct, courts have carefully scrutinized the
subpoenas to insure that they are proper and not abusive. Doe v.
2TheMart.Com, 140 F.Supp.2d 1088, 1092, 1097 (D.Wash. 2001)
(“discovery requests seeking to identify anonymous Internet users must
be subjected to careful scrutiny by the courts”; recognizing chilling
effect if Internet anonymity can be easily stripped away; "the
constitutional rights of Internet users, including the right to speak
anonymously, must be carefully safeguarded"); Columbia Ins. Co. v.
Seescandy.Com, 185 F.R.D. 573, 578 (N.D.Cal.1999) (recognizing
"legitimate and valuable right to participate in online forums
anonymously or pseudonymously"); Dendrite International Inc. v. Doe,
29 Media L. Rptr. 2265 (N.J. Super Ct. July 11, 2001) (denying limited
discovery to determine identities of four individuals who posted online
messages about a software company using anonymous handles); Melvin
v. Doe, 29 Media L. Rptr. 1065 (Pa. Ct. Common Pleas, Allegheny Cty.,
Nov. 15, 2000) (to uncover identity of Internet posters, plaintiffs must
make a preliminary showing of the merit of the case; even after
plaintiffs meet this burden, confidentiality order may be required). It
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There is another alternative that would ensure identification and
reach: The RIAA’s member whose copyright is at issue can file a John
Doe lawsuit against the alleged infringer. Or, if what RIAA wants to do
rights are implicated, courts should require that litigants use less
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issuance and enforcement of subpoenas for the identity of an ISP’s P2P
V.
that the RIAA did not need telephone numbers to identify the
subscribers, but held that Charter must provide its subscribers’ e-mail
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telephone number, and, if available, an electronic mail address.”
§ 512(g)(3)(D).
proper DMCA subpoena, then the copyright holder may avail itself of
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addresses. The DMCA was never designed to transform ISPs into a
intrudes into Internet users’ lives and activities, without any judicial
associates like RIAA but also to aggressive and extremist entities that
own copyrights and object to others’ use (or suspected use) of their
its own bare claim of suspected infringement, learn the identities of its
may use the subpoena power to harass those who critically quote or use
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games may – at least if e-mail addresses are revealed – get direct access
unsupervised subpoenas.
owner may prompt an immediate and less than fully considered reply
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sufficient identifying information – names and addresses – will protect
Internet users from such misuses of the more intrusive telephone and
Act.
CONCLUSION
that the Court not only reverse the district court’s order with directions
to grant Charter’s Motion to Quash, but also to order the clerk not to
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issue any further subpoenas to Charter for the RIAA under § 512(h).
Charter further requests the Court to direct the RIAA to return all
information. See 47 U.S.C. § 551. Even if the RIAA has begun to make
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continue doing so, since it is clear, as illustrated by the D.C. Circuit’s
Verizon ruling, that the RIAA had no valid basis under the DMCA to
the Court to enter its judgment reversing the order of the district court,
giving the directions specified above, and granting such other relief as
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Respectfully submitted,
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CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that this brief complies with Fed. R.
It contains 9,294 words, excluding the parts of the brief exempted; has
2000 in 14 pt. Century Schoolbook font; and includes a virus free 3.5”
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CERTIFICATE OF SERVICE
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ADDENDUM
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